Question about ATF ruling and residency

[primalmu]

I'm looking for a dealers perspective (and, honestly, a lawyer's if any here wish to give it) pertaining to ATF Ruling 80-21.

Background: I am a WV resident living in MS while I attend veterinary school. I have been here for nearly 3 years now, and have 1 year left to go. In my time here I've sold two rifles, both of which I have insisted on transferring through an FFL since I am not a MS resident.

This morning I discovered ATF Ruling 80-21, which pertains to my exact circumstance (i.e. the residency status of out-of-state college students).

It states:

27 C.F.R. 178.11: MEANING OF TERMS

An out-of-State college student may establish residence in a State by residing and maintaining a home in a college dormitory or in a location off-campus during the school term.

ATF Rul. 80-21

[Status of ruling: Active]

The Bureau has been asked to determine the State of residence of out-of-State college students for purposes of the Gun Control Act of 1968. “State of residence” is defined by regulation in 27 C.F.R. 178.11 as the State in which an individual regularly resides or maintains a home. The regulation also provides an example of an individual who maintains a home in State X and a home in State Y. The individual regularly resides in State X except for the summer months and in State Y for the summer months of the year. The regulation states that during the time the individual actually resides in State X he is a resident of State X, and during the time he actually resides in State Y he is a resident of State Y.

Applying the above example to out-of- State college students it is held, that during the time the students actually reside in a college dormitory or at an off-campus location they are considered residents of the State where the dormitory or off-campus home is located. During the time outof-State college students actually reside in their home State they are considered residents of their home State.

http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-80-21.pdf

It seems to me that, based on this ruling, it is perfectly legal for me to privately sell any firearm to a MS resident without having to go through an FFL. Furthermore, it also seems as though this ruling would permit me to purchase handguns in MS even though my official, out-of-school residency is WV.

Question for FFL: Given this ruling, would you feel comfortable (with or without a call to the ATF to verify) selling a handgun to me? Obviously I know you can't speak for other dealers.

 

[NavyLCDR]

Question for FFL: Given this ruling, would you feel comfortable (with or without a call to the ATF to verify) selling a handgun to me? Obviously I know you can't speak for other dealers.

You must meet the proof of residency requirements contained in ATF Rule 2001-5:

http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-2001-5.html

ATF has received questions from licensees regarding purchasers who present a State-issued driver's license or other identification document that shows either an out-of-date residence address or a mailing address (such as a post office box) in lieu of a residence address. ATF has advised that these identification documents, standing alone, would not satisfy the requirements of the regulations implementing the Brady Act.

It is ATF's position that a combination of documents may be used to satisfy the Brady Act's requirement for an identification document. The prospective transferee must present at least one valid document that meets the statutory definition of an identification document; i.e., it must bear the transferee's name and photograph, it must have been issued by a governmental entity, and it must be of a type intended or commonly accepted for identification purposes. ATF recognizes, however, that some valid government-issued identification documents do not include the bearer's current residence address. Such an identification document may be supplemented with another valid government-issued document that contains the necessary information.

Thus, for example, a licensee may accept a valid driver's license that accurately reflects the purchaser's name, date of birth, and photograph, along with a vehicle registration issued by the State indicating the transferee's current address. Licensees should note that if the law of the State that issued the driver's license provides that the driver's license is invalid due to any reason (i.e., the license is expired or is no longer valid due to an unreported change of address), then the driver's license may not be used for identification purposes under the Brady Act. If a licensee has reasonable cause to question the validity of an identification document, he or she should not proceed with the transfer until those questions can be resolved.

...

Held, the Brady Act and the implementing ATF regulations require licensed importers, manufacturers, and dealers to examine a valid government-issued identification document that bears the name, residence address, date of birth, and photograph of the holder prior to making an over-the-counter transfer to any unlicensed transferee. Licensees may accept a combination of valid, government-issued documents to satisfy the identification document requirements of the Brady Act. A government-issued photo identification document bearing the name, photograph, and date of birth of the transferee may be supplemented by another valid, government-issued document showing the transferee's current residence address.

 

[NavyLCDR]

From the form 4473 instructions:
http://www.atf.gov/forms/download/atf-f-4473-1.pdf

Read the instructions for question 20b on page 5.

The for example in the instructions is your exact situation.

 

[primalmu]

How about a C&R license showing my MS address? Would that suffice to satisfy the second government-issued document?

 

[TylerS]

I am in Law School and determining residency is a Civil Procedure question. To prove residency you must be physically domiciled in that state with the intent to remain. So a drivers license is a good start and required by the ATF because you have to be living in that state (usually) in order to obtain that license. The second element - intent to remain - is on you. Do you plan on living in the state as far as you know right at this moment forever? If yes, then you are a legal resident of that state. What have you done to show your intent? Be aware this is not legal advice this is just me repeating to you the meaning of being a resident of a state. So based on the other posts if you claim two states and have legitimate documentation to show your residency the ATF has already spoken to this and you can do that.

 

[primalmu]

TylerS, ATF Ruling 80-21 would seem to outline a specific case (specifically college students) that would negate the normal requirements to prove residency, otherwise wouldn't one have to change state IDs every summer break when you went home and were considered a resident of your home state?

Applying the above example to out-of- State college students it is held, that during the time the students actually reside in a college dormitory or at an off-campus location they are considered residents of the State where the dormitory or off-campus home is located.

So, as long as you can prove you are a student (student ID) and can prove that you actually live in the state in question (in my case, my C&R license with MS address), then that would seem to satisfy the ATF's requirement that I am considered a MS resident while residing in MS for school.

 

[TylerS]

For ATF purposes they seem to have negated the normal legal requirements for establishing residency. I think you are good to go in MS.

 

[NavyLCDR]

For ATF purposes they seem to have negated the normal legal requirements for establishing residency. I think you are good to go in MS.

Federal definition of residency for the purposes of firearms transactions is in 27 CFR 478.11:

http://www.ecfr.gov/cgi-bin/text-id...iv8&view=text&node=27:3.0.1.2.3.2.1.1&idno=27

§ 478.11 Meaning of terms.

When used in this part and in forms prescribed under this part, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, terms shall have the meanings ascribed in this section. Words in the plural form shall include the singular, and vice versa, and words importing the masculine gender shall include the feminine. The terms “includes” and “including” do not exclude other things not enumerated which are in the same general class or are otherwise within the scope thereof.

State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located, as stated in 18 U.S.C. 921(b). The following are examples that illustrate this definition:

Example 1. A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.

Example 2. A maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Example 3. A, an alien, travels to the United States on a three-week vacation to State X. A does not have a state of residence in State X because A does not have the intention of making a home in State X while on vacation. This is true regardless of the length of the vacation.

Example 4. A, an alien, travels to the United States to work for three years in State X. A rents a home in State X, moves his personal possessions into the home, and his family resides with him in the home. A intends to reside in State X during the 3-year period of his employment. A is a resident of State X.

Two things are required: 1. Physical presence in a state, and 2. Intention to make a home in the same state. Notice it does not specify "permanent and forever home" nor does it specify a specific purpose for establishing a home there. A temporary home, even just a dorm room, where the person sleeps at night regularly while they go to college is enough for residency for the purposes of firearms transactions. HOWEVER, to purchase a handgun from a dealer, the person must provide adequate proof of that residency via a government issued document which shows the actual residence address (a C&R license would definitely qualify).

Also note, question 13 on the form 4473, "What is your state of residence (if any)?" is answered with the CURRENT state of residence where the person is present at the time with the intention of making a home.

Active duty military members may also have a completely separate state of residence than where they actually sleep every night - that state being where they have permanent orders to. For example, I had permanent orders to Connecticut, but my base housing unit was in Massachusetts. Therefore, for firearms transactions, I was a resident of both MA and CT every day. To purchase a firearm in CT, I would show my active duty military ID card + my orders to CT. To purchase a firearm in MA, I would show my active duty military ID card (or even my Wyoming Driver's License) + the government document assigning my base housing unit in MA.

While I had orders to CT and lived in MA - it would actually have been illegal for me to purchase a firearm in Wyoming, claiming Wyoming as a state of residence, with my Wyoming driver's license, because if I was present in that state it would have been with the intention of visiting family and not making a home there.

 

[primalmu]

So as long as I cover my bases and make sure I have all appropriate forms of identification I should pretty much be free to act as a MS resident in terms of private sales as well as handgun purchases. Finding an FFL that is willing and/or has the time to confirm this exception might be difficult, unfortunately.

 

[NavyLCDR]

Finding an FFL that is willing and/or has the time to confirm this exception might be difficult, unfortunately.

You mean the one paragraph in the instructions of the form 4473 that you have to fill out anyway?

 

[Prince Yamato]

You are a dual resident of both those states but most people are unaware of this law and will think you are acting illegally.

 

[primalmu]

Exactly Prince Yamato. One local FFL refused to sell me a complete AR lower about 6 months ago because they said it was considered a handgun. I don't know what the real case is, but another FFL didn't have any problem selling me one, especially after consulting with his ATF contact and being unable to see any reason why it wouldn't be legal.

We all know that LGSs can be either really smart and really know their stuff, or REALLY stupid. Just like the real world, I guess.

 

[medalguy]

This is similar to my situation. I own homes in 2 different states, and I travel from home to home many times a year. I have a driver's license from state #1 which is my primary residence. I obtained a state-issued ID card from the second state to show my residency there as well. As far as BATF is concerned, I am a resident of state #1 whenever I am residing in that state, and I am a resident of state #2 whenever I am residing there. There is no minimum time requirement, and there is no requirement that I intend to remain in either state for any specific time period.

I can use my driver's license from state #1 to buy any firearm I wish while in state #1, and I can use my state ID card to buy any firearm I wish while in state #2. Additionally, I can freely carry a firearm from state #1 to state #2 when I move, and vice versa, regardless of where that firearm was originally purchased.

Prince Yamoto is 100% correct, most people do not think this is correct but it is and I have been doing this for nearly fifteen years.

 

[lpsharp88]

I ran into the same problem as the OP. I am an Ohio resident, but go to school in KY. The only form of state issued ID I have is my OH drivers license and OH CCW. So how would someone in this situation obtain a state issued ID? Or otherwise get some way to prove residence during the school year?

 

[dogtown tom]

lpsharp88 I ran into the same problem as the OP. I am an Ohio resident, but go to school in KY. The only form of state issued ID I have is my OH drivers license and OH CCW. So how would someone in this situation obtain a state issued ID? Or otherwise get some way to prove residence during the school year?

You can use a combination of government issued documents as "alternate documentation".......utility bills from a municipality, a traffic ticket, a hunting or fishing license, tax documents.

Any document from a government entity that shows your name and current residence address.

 

[Phatty]

I am in Law School and determining residency is a Civil Procedure question. To prove residency you must be physically domiciled in that state with the intent to remain.

You're referring to state citizenship, not residency.